Taking a breather….

As Parliament closed for the Easter recess there was a sort of stunned silence that reigned over the precinct. It was as if the guns had gone silent following a truce declaration.

Maybe it was because parliamentarians were looking at their piled-up in-trays as they left or were considering the legislative backlog that had built up and the long list of promises that had been made to get the country back on its feet. Nevertheless, the feeling that change was coming was palpable.

At least in the last few weeks people were smiling and looking more cheerful, saying “good morning” to all and sundry – a pleasant habit of long ago which has now returned. The ambiance at portfolio meetings has improved dramatically with many a parliamentarian having to carry a lesser amount of political baggage.

An improved atmosphere has also been noticeable in the National Assembly, despite hard debate on such issues as the Political Party Funding Bill and the motion for an early end to the next parliamentary session. Such issues would cause heated discussions between MPs, delegates and people’s representatives in any parliamentary forum worldwide but the angst and gloom caused by a feeling of helplessness has gone.

Long walk

The journey from the days when those two ridiculous men in gum boots, red hard hats and an old water pump tried to explain away the Nkandla swimming pool as a “fire pool”, lasting until the other day when everybody woke up to hear that the country had squeaked through with a Moody’s stable rating, has been a long and exhausting one.

At one stage it seemed that scriptwriters were on the loose trying to dream up impossible situations for the next episode of a TV series.

Film locations moved from Saldanha Bay one minute, to the Free State the next, and then to Gold Reef City; from 54 Sauer Street, Johannesburg to the Union Buildings in Pretoria; from the Constitutional Court, the British Houses of Parliament, Moscow, Dubai, to a chicken coop in the King Cetshwayo district of KwaZulu-Natal, and from a large domestic home in Saxonwold, possibly with a shebeen, to the steps of the National Assembly in Cape Town.

All of this is impossible, it seemed. What could tomorrow bring that could possibly exceed yesterday?

Never ending

Now we hear from the Hawks that some nefarious types, who illegally trade in abalone, delivered at some stage a cartload of money to the gates of Nkandla to ensure the retention of a certain Cabinet minister.

Who could possibly have written such an outlandish, disconnected and never-ending series of scripts?

For the average South African, it has also been a highly expensive journey. Very few are better off because of the disasterous reign of Jacob Zuma, except of course a notable few who were pulling the strings. Most are worse off. It has been a disgraceful episode in the country’s history and the whole of the sordid story is sadly yet to emerge.

Chinese trains

The news recently in the Portfolio Committee of Transport that the Transnet heist has paled the Eskom heist into insignificance brought up the awful thought of another round of endless parliamentary inquiries. But that cannot happen. It should be left to the Hawks. There is just not enough time in the diary and, in any case, with Parliament closing early for next recess who knows what will be further uncovered. The parliamentary programme is now far too behind for more navel gazing.

There is much outstanding legislation needing urgent debate and coming up are the important issues of land reform, minimum wage finalisation, mineral resources charters, decisions on tolling principles, health crisis controls, and energy mix finalisation. Fortunately, we do not have a sitting President who will hold up legislation for personal reasons, as Jacob Zuma did with the FICA Bill.

Looking ahead

Parliament will now shut down its next and second of the year session earlier on June 18 and return later August 13 for the third session. With some 47 Bills to be processed by Parliament, this will be an embarrassment. Quite obviously the reason for an early constituency period is politically driven, a further backlash of the Jacob Zuma era. It could be a snap election. Who knows?

It will now be hard task to deal appropriately with such key laws in draft including the Mineral and Petroleum Resources Development Amendment Bill, the Minimum Wage Bill, the Basic Conditions of Employment Amendment Bill, the Cybercrimes and Cybersecurity Bill as well as the Expropriation Bill, the Copyright Amendment Bill and the Critical Infrastructure Bill before June 18, but the delay has to be recognised as fact and put down to damage control.

Fixed anchors

Despite all this, Parliament has preserved its status despite the political moves to challenge its structure. It has won the day in the separation of powers battle, despite losing a little of its dignity. It has become the battlefront for all that is right and the only real venue for its people to be represented, despite there being no real constituency system but only a party list process.

But most important of all, the Constitutional Court was seen and heard to be arbiter of truth and good reason. This gives us every confidence that the land reform and restitution issue, an issue that was never going to go away, will be handled in the same manner with a good mix of common sense, fairness to all and proper application of the law. We remain positive.

Minimum Wage not signed into law…

The long journey for South Africa’s first minimum wage fix has been tabled in the National Assembly with the Basic Conditions of Employment Amendment (BCEA) Bill and the National Minimum Wage Bill (NMW) Bill having passed second reading stage and having been voted upon.

But all is not well with in the drafting of this Bill by the Department of Labour (DOL) and further reports on union reactions are to be posted in due course. This site is archival.

These two Bills, voted upon and approved by both the National Assembly and the NCOP, four months before the agreed minimum wage to be implemented by law with a deadline of May 2018 set by President Ramaphosa in his State of Nation Address, have therefore not yet been signed by him.

Terminology all wrong

This is because nobody present at the Portfolio Committee of Labour meetings seems to have know what was agreed at earlier NEDLAC meetings. Both Bills were tabled by the Minister of Labour, Mildred Oliphant. In the case of the NMW Bill, the proposal tabled specifies that the national minimum wage will be obligatory for all employees and cannot be varied by contract, collective agreement or law, except by a law amending the anchor Act itself.

Cabinet’s approval of a national minimum wage followed consultations and agreements with business‚ labour and community formations within NEDLAC to allow for the introduction of a national minimum wage. Some low-income employees such as farm workers and domestic workers are to be exempted at a lesser sum and subject to further talks.

Final story

This approval is also translated across into the tandem NMW Bill, a much shorter 14-page Bill, states as item one that the national minimum wage for employees is R20 for each ordinary hour worked but then states as item two that despite this, farm workers are to be entitled to a minimum wage of R18 per hour and domestic workers to R15 per hour. Both anchor Bills can be amended based on annual negotiations.

The BCE Act describes a farm worker simply as “a worker who is employed mainly or wholly in connection with farming or forestry activities” and describes a domestic worker not only as being a worker employed in a home but also “a gardener; a person employed by a household as a driver of a motor vehicle; a person who takes care of children, the aged, the sick, the frail or the disabled; and domestic workers employed or supplied by employment services.”

New boss

The tabling of these two Bills was ratcheted up when Deputy President Cyril Ramaphosa referred to them in one of his first candid speeches unencumbered by political restraint, when he said, “The minimum wage, which translates to R3,500 per month, will be based on a 40-hour week and R3,900 for a 45-hour week. Whilst not being a living wage in his estimation, it represented a start to the upliftment of 6.6 million workers in the country who earn below R3,500, he said.

The secret to acceptance for any number of reasons will not be as a result of parliamentary hearings in this case but an assessed view of how acceptance plays out at provincial level, now in process. Workshops are now touring the country organised by DOL attempting not only the easier task of informing city dwellers but also attempting to outreach to more distant areas such as farming communities.

Outreach

In democratic terms it has been decided that the final stages of the Bill must reflect how the people feel. Provincial briefing sessions on the subject of a minimum wage started 9 November 2017 and commenced in Johannesburg, Pretoria, Cape Town, George, Pietermaritzburg, Richards Bay, Durban, Tzaneen, and Polokwane.

The balance of meetings is to be completed after Parliament has opened Port Elizabeth, Upington and culminating in Kimberley. The balance of all provincial will be assessed by MPs and Parliament will proceed based on input. Feedback is filtering through that the description of workers leaves a number of casual categories holding the short straw in terms of definitions. Our current report with clients amplifies the outrage.

How they see it

The proposed changes to the BCE Act also make provision for the introduction of a new section dealing with guaranteed minimum hours of work. This section provides that an employee, who works for less than four hours on any day will be entitled to be paid for four hours of work if circumstances beyond the control of the employee prevent work from being performed.

Reactions of unions to the term of “employee” being used throughout in the Minimum Wage Bill is now being played out and the “fall out” from the misrepresentation is referred to in reports still with clients.

LRA Bill through Parliament

The Labour Relations Amendment (LRA) Bill has now been passed by the National Assembly, thus confirming the ambition of Minister of Labour, Mildred Oliphant, to have this and the Basic Conditions of Employment Amendment Bill (BCEA) as signed-off legislation before the last session of Parliament of the present government. The Bill received the concurrence from the NCOP, in this case the matter being considered a formality although the select committee involved called for submissions.

Two down, two to go and more to come

This leaves the two equity labour laws, the Employment Services Bill and the Employment Equity Amendment Bill, as part of four Bills approved by the Nedlac process and designed by the department of labour (DOL) to overhaul labour legislation in South Africa, to be finally approved in the last session.

The LRA changes in the meanwhile will enable legislation to address, DOL says, “a number of unfair labour practices” with minister Oliphant telling the House that the Bill now passed “will bring the provisions relating to child labour in line with international standards and will strengthen the mechanisms for enforcement of basic conditions of employment, including wages.”

Ballots and part timers

The new Act will alter the anchor Labour Relations Act (1995) to include a number of major amendments including the facilitation of the granting of organisational rights to trade unions that are “sufficiently representative” and, in addition, will require a trade union or any employers’ organisation to conduct a ballot prior to calling a strike or lock-out.

The new provisions will strengthen the status of picketing rules and agreements and in many instances the powers of the labour court are clarified. They will also determine and outline minimum service conditions deal with circumstances involving workers placed by temporary employment services, regulates on the employment of fixed-term contracts and deals with part-time employees earning below an earnings threshold.

UIF also involved

DOL has also tabled amendments to Unemployment Insurance Act to include foreign workers and public servants as well as to amend benefits by extending the period of payment of benefits to the contributor from eight months to twelve months and also extending the period in which a contributor can lodge a claim from the current six months to twelve months. Nomination of beneficiaries for death benefits will be possible and the fund itself will be allowed to finance its own employment promotion projects.

Under the occupational health aspect of DOL’s mandate, a Bill has been promised on the issue of noise pollution levels in the factory environment.

previous articles on this subjecthttp://parlyreportsa.co.za//cabinetpresidential/parliament-delays-process-on-labour-relations-bill/http://parlyreportsa.co.za//education/employment-services-bill-will-promote-jobs-and-free-employment-services/http://parlyreportsa.co.za//bee/dates-for-new-labour-law-amendments-outlined/

Two days of parliamentary hearings and weeks of debate on the proposed Basic Conditions of Employment and the Labour Relations amendment bills were based on the fact that the parliamentary portfolio committee on labour laws in no doubt that business in general, representative employment bodies and in many case government’s own utilities saw no benefit for the country as a whole if the new labour legislation, as it was originally drafted, had been passed in its original form.

The original issue that caused much of the furore was the labour broking issue but the draft Bills cover considerably more issues than just this matter alone, representing as they do, an overhaul on a number of contentious labour matters.

In well attended public hearings a considerable number of parties mostly with a commercial background complained that the Bills as they were originally proposed would in all likelihood set back South Africa’s investment programme; would probably also result in more jobs lost than gained and in many cases said the provisions were either counter-productive, unclearly defined and mostly unfair to employers, sufficiently so as to be legally unenforceable.

Now in mid-November, the Labour Relations amendments have reached a delicate stage where parliamentary legal teams are considering a final draft with most of the clauses now being agreed, particularly on aspects of workability and constitutionality. Their is a clear divide in discussions on the two issue: policy issues and legal issues and chairperson Elleck Nchabaleng (ANC) has been at pains to maintain this division as the committee has set about debate the legislation clause by clause. Adv Gordon and Adv Barbara Loots have been present at most meetings as members of the parliamentary legal team.

A major issue of recent has been wording in respect of the retrenchment of senior and higher paid employers and furthermore wording that would reflect a wish to unclog the CCMA from cases put before them. Another issue has been the matter where clauses have been so altered or new wording adopted that the sections concerned bear little relationship to the documents perused during public hearings.

The amendments to the Basic Conditions of Employment Amendment Bill which was tabled in tandem seem have reached a more conclusive stage on the subject of committee deliberation.

Among the organisations making inputs originally were the SA Chamber of Commerce and Industry, the Mr Price Group, the Banking Association of SA, the SA Society for Labour Law and the Federation of Unions of SA and Cosatu.

The main thrust of Cosatu’s presentation was to inform parliamentarians that their official stance to the committee on labour broking had been revised and their insistence that the legislation before them have provisions banning labour broking in any form had been reviewed. Also, as a consequence, they were not objecting to the process of labour broking registration.

Prakashnee Govender, the Cosatu representative, however maintained that the “real employer”, not the broker, should assume all employment obligations for the worker contracted where the work was not temporary in nature.

Cosatu also voiced the view that any trade unions should have to obtain majority support when balloting their members before embarking on industrial action, Govender stating that this constituted a “fundamental attack not only on the right to strike but also on collective bargaining” and that such amounted restrictive practices by employers.

Govender also stated that Cosatu opposed the wording that unions be held liable for damage caused during strikes but said that to allow pickets to be present on “third party premises” was welcomed.

American Chamber of Commerce who were at first was disallowed by the chair to present in their slotted programme time but subsequently allowed to present to MPs after consideration by the chair, made it quite clear that Amcham saw a great number of unintended and unfortunate consequences resulting from the Bills and called for a regulatory impact assessment prior to any such amendments. Amcham’s presentation was eventually made on a later date by a representative of General Motors in SA.

They clearly felt that it was not in South Africa’s economic interests to pursue the Bills as they stood.

AHI supported the idea provided for in the Labour Relations Act amendments of allowing balloting before engaging in a strike but noted that in their experience it would rarely be properly supervised, putting the validity of such an exercise in jeopardy. Other presentations noted that civil strife could follow such procedures as suggested.

AHI was particularly concerned that the proposals would give no benefit to small business, in fact claimed “that since the announcement of these amendments, more than 440,000 small businesses had closed their doors”.

Like most presentations, the need for some amendments were not doubted by various organisations and bodies. Most seemed to support the objectives in a broader sense but such issues as prohibition of sub-contracting; issues surrounding part-time employees becoming full time employees by virtue of the passage of time; and retrenchment conditions on higher income employees were focused upon as being counter-productive.

These were rejected as either not making economic sense, being badly worded, confusing, or, as some submissions stated, having negative or opposite effects on employment conditions. Most submissions rejected whole clauses in totality but few supplied alternative wording.

Now that two months of deliberations have taken place within the Portfolio Committee on Labour, the belief is that final drafts could be put before the National Assembly before the end of the current parliamentary session. Representing the Democratic Alliance on the labour portfolio committee is Sej Motau.

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